governance, political economy, institutional development and economic regulation

Posts tagged ‘Article 352 Constitution of India’

“Demonetisation” as a morality play

The politics around “demonetisation” — a misused term for what happened on November 8, 2016 — has taken centerstage in the run-up to the Assembly elections in Himachal Pradesh (that voted yesterday) and Gujarat (which goes to the polls in December). Finance minister Arun Jaitley has added “morality” to the cluster of objectives, that seemingly justified compulsorily replacing 86 per cent of our currency with new notes over a short period of just two months last year.

Whose morality?

Morality is a slippery slope to tread in public affairs. It’s certainly an individual virtue, but at a societal level it’s difficult to define. Consider the moral conundrums that arise while enforcing a law which doesn’t have widespread local acceptance. Rebels with a cause see themselves as morally-elevated outliers. Not so long ago, our freedom fighters were feted for disrupting the peace, assassination or damaging public property. Even today in areas like Kashmir or the Maoist belt in central India, it’s tough to apportion the balance of morality between those who violate the law and others who seek to enforce it.

Our Constitution, quite properly, is silent about “morality”. A quasi-moral concept of “socialism” was introduced in 1976 into the preamble, by former PM Indira Gandhi, as a populist measure. But it sits incongruously with the otherwise liberal slant of the document.

Corruption is patently immoral as it saps national wealth. Measures to fight corruption are part of public dharma. The real issue is: was demonetisation essential to end corruption?

Demonetisation to identify counterfeit money like using a hammer to kill a bug

If the objective was to weed out counterfeit money, which can fund terrorism or even legal transactions, there was no need to impose a tight timeframe of two months. This is what caused widespread panic and disruption. It would have been enough to alert the public to the menace; provide markets (banks already have them) with testing devices to weed out “compromised” notes over time. This is an ongoing activity, that all central banks do routinely, because any note (besides crypto currencies) can be counterfeited.

Better policing can identify & capture the stocks of black cash

If the objective was to capture the stocks of “black” money, held as cash, in one fell swoop, this was better done by making known “havens” of “black” cash — apparently entire warehouses — unsafe for storage through effective enforcement, coupled with strong incentives to come clean. Note that “black” money hasn’t gone away.

Black money was generated even as the notes were being replaced

Demonetisation can do very little to stop generation of black money. The government knows this. It intends to use “big data” for surveillance of potential evaders; embed governance systems with enhanced oversight and enhance transparency. Only improved technology and perpetual, intensive oversight can starve this hydra.

Was it political?

Not least the timing of the move, just before the elections in Uttar Pradesh, India’s most populous state, which sends the largest number of members to the Rajya Sabha, where the BJP didn’t have a majority, could indicate the compulsion to play to the gallery. If this was the motive it worked very well politically — not least, because UP is a poor state with low governance indicators and high levels of inequality. Hitting the rich is a tested populist strategy, perfected by former PM Indira Gandhi, and still held dear by our antiquated Communist parties.

Would Gandhiji have approved?

But demonetisation doesn’t align with Mahatma Gandhi’s precept that “means matter as much as ends”. Hitting tangentially at corruption, at the cost of scorching even the law-abiding, is unacceptable. Anti-corruption measures which ignore the social and economic collateral cost of implementation are suspect. The State has an asymmetric, fiduciary relationship of trust with citizens. Did it live up to its dharma of insulating the honest from State-induced actions intended to harm the corrupt?

Some positives – nudged people towards digital and banked transactions

Undoubtedly, demonetisation did accelerate a shift towards banked transactions and boosted digital payments. Both outcomes are winners. But it’s also true that it put a temporary brake on economic growth by disrupting business and inducing job losses, mostly in the informal sector, where workers and the self-employed are less well paid, and less well-endowed to absorb the cost of a disruption.

Means matter as much as ends

Seemingly desirable steps to make the system honest can have grossly inequitable outcomes, which Gandhiji would have termed “immoral”. It’s possible to reduce corruption by replacing income-tax with a “head tax”. Citizens are more easily identifiable than their income, so very few would be able to escape this tax. If a “head tax” were to replace income-tax, each citizen would pay Rs 3,600 per year. But consider, for 40 per cent of the population, which is vulnerable to poverty, the head tax would be a minimum 12 per cent of even the poverty level income of $1.90 per day. Currently, even an income of Rs 10 lakhs (Rs 1 million), or 22 times the poverty level income, attracts a low effective tax rate. Protecting the weak is cumbersome. It creates tax escape routes, which need to be plugged with minimum collateral damage to the weak and the honest.

GST the first efficient, corruption buster

The good news is that the Narendra Modi government has got it bang-on with its second major corruption-busting initiative: the Goods and Services Tax (GST). Implemented from July 1, 2017, it has also disrupted business and compounded job losses, arising from the shutting down of businesses, which relied on the illegal competitive advantage of avoiding tax. GST is a potent standalone, medium-term winner. This expectation mitigates the interim economic “amorality” arising from the collateral harm to innocent workers and suppliers to such businesses. The proactivity of the GST Council in correcting mistakes and acknowledging errors has only deepened its credibility and conveyed a sense of responsible stewardship. This is welcome.

Compensate for the distress & dislocation

cashless

Demonetisation was misguided even if it had “moral” end-objectives. One-fifth of our population, which suffered the most, is in the income segment of Rs 50,000 to Rs 5 lakhs (0.5 million) per year, being workers and those self-employed in the informal sector. They have still not been compensated. Hopefully, the finance minister will apply some balm in his 2018-19 Budget and bring this tragic “morality play” to a happy end.

Adapted from the author’s opinion piece in The Asian Age, November 10, 2017 http://www.asianage.com/opinion/columnists/101117/end-morality-play-its-a-misfit-in-eco-policy.html#vuukle-emotevuukle_div

Lest we forget our “dark” non-democratic past

emergency

photo credit: http://www.dw.de

Forty Eight years ago on March 23, 1977 India emerged from the darkness of a 21 month long “national emergency (Article 352 of the Constitution)” into the light of full restoration of fundamental rights. Indira Gandhi- the then Prime Minister, a feisty mother, tired of the excesses of her son- Sanjay Gandhi, called for general elections in January 1977, which resulted in the decimation of the Congress Party in the North and the humiliating defeat of herself and Sanjay from their pocket boroughs of Rae Bareilly and Amethi respectively.

Lest this dark period repeat itself, we must plug the institutional gaps which allowed it to happen in the first place.

Better oversight of the need to impose emergency

First, today the President is the only entity empowered to exercise oversight over the government’s proposal to implement the emergency provisions. This arrangement has not served us well.  The manner in which the Indian President is selected- indirectly by a simple majority of the MPs and MLA vote- only ensures that a “candidate” of the ruling party wins. Any, but the most exceptional, human being is bound to serve those who appointed him. This makes the President unsuited to stand up to a Prime Minister who has a more direct democratic mandate. Fakhruddin Ali Ahmed- no moral giant succumbed to Indira Gandhi’s dark machinations- and approved the Proclamation of national emergency.

But that was as inevitable as the more recent example of the shoo-in, unelected Prime Minister- Manmohan Singh, subverting public interest, presumably under pressure from the Congress Party. Sonia Gandhi- an astute politician ensured her centrality by putting in place a non- threatening President of India (Pratibha Patel-2007 to 2012) and a Gandhi subaltern as Prime Minister.

Can we avoid a recurrence of such crass undermining of our constitutional framework? There are three options.

  1. We could change the manner in which a state of national emergency is approved by making it more inclusive and subject to ex-post-facto approval not only from the Parliament, as presently required, but also by state legislatures. The downside is this is likely to be a clunky process and unsuited to the urgent needs of a “real” emergency.
  2. We could change the manner in which the President is elected to strengthen the incumbent’s independence from the executive and preserve his mandate for guarding against a mala fide “emergency provision” by the government of the day. The best way to do so is to directly elect the President. Whilst there are good reasons why we should adopt a Presidential style of government, doing so, just to safeguard against malicious use of the provisions for national emergency, would be like the tail wagging the dog.
  3. We could narrow down the basis for imposing national emergency by excluding “armed rebellion” as one of the three reasons. The other reasons are “war” or “external aggression”. This approach resonates in these troubled domestic times. A large part of Eastern India is under siege from Maoist and assorted rebels but life goes on there and the situation is improving, without recourse to emergency provisions.

In any event “armed rebellion” is largely a “domestic law and order” issue which is handled by state governments and can be dealt with using the existing laws criminalizing violence and terrorism. Nothing stops the Union Government from coming to the assistance of a state government which needs help in dealing with the break-down of the rule of law.

A State Government, which is unable to manage “armed rebellion”, may yet be reluctant to seek or accept help for political reasons. The proper way to deal with such governments is to impose state level emergency provisions under Article 356 if there is break down of the constitutional machinery at the state level. There could be a number of reasons why there may be a constitutional meltdown in a state and “armed rebellion” is just one of them.

Limit the period

Second, more broadly, the scope of a Constitutional provision for imposing emergency; suspending fundamental human rights and diluting recourse to the higher judiciary against excessive or unjust executive action needs to be relooked.

Independent India has fought four wars till now- 1962-China, 1965-Pakistan, 1971-Pakistan and 1999-Pakistan. They all ended within a month except the last one, fought on the heights of Kargil, which lasted three months. This illustrates that the need for unfettered executive action, unencumbered by clunky constitutional provisions, lasts only for a limited period. Presently, emergency provisions can be extended ad-infinitum merely with Parliaments approval. The 1975 emergency lasted 21 months! That is way too much power to give to a simple majority of Parliamentarians with too few safeguards to guard against the mala fide use of such wide powers.

Forget the “steel frame” 

Third, our dark past showed us that faced by a determined and malign political power the much vaunted bureaucracy crumbles and “crawls” even without specifically needing to do so. The “steel frame” has eroded far too much to be revived. Indeed it is questionable if it should. After all, in modern democracies it is those who have the popular mandate who must rule and be responsible for the outcomes. Professional bureaucrats are today just that- professionals who devise the most optimum way of achieving political objectives. They cannot and indeed must not, be expected to carry the can of defending the nation against tyrants. That is best done by developing robust institutions; formal and informal norms for political behavior.

Make political parties democratic

Fourth, political parties are the vehicles for consolidating and representing the opinions of voters. They continue to be very ineffective in the absence of commonly accepted norms for their internal governance. Even a small public limited company is exposed to more regulatory control to ensure transparency and protect the interests of the small shareholder, as compared to even the largest political party. Media reports suggest that the Congress party could be the biggest real estate owner in India! In the absence of disclosure standards for political parties rumor may well be fact.

Unless a code for ensuring transparency and preserving inner party democracy is imposed on recognized political parties, the “recognition” granted to them by the Election Commission is meaningless. It is instructive that the nascent Aam Admi Party is self-destructing even today on the charge of undemocratic and authoritarian rule by a select few leaders. The Election Commission must be empowered to define and audit standards for the internal governance of political parties- audit and accounting of party funds; election of leaders and protecting the rights of the ordinary member, in much the same way as SEBI does for public limited companies listed on the stock exchange.

Democratic party processes can breed democratic leaders and thereby cut at the root of dynasty; megalomania and delusional complacence.

Time to get working on protecting the ordinary voter from the tyranny of undemocratic political parties.

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